The OIC-led campaign to recognize defamation of religion as a violation of international human rights stretches back to 1999, it ended in 2011.

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As heated opposition began mounting last week in response to three possibly
navel-gazing, possibly blasphemous tweets, 23-year-old Saudi national Hamza
Kashgari undoubtedly regretted his announced intention to only speak with
Mohammed “as a friend, no more.” But as Kashgari is forcibly deported from
Malaysia following an abortive escape from the Saudi Kingdom, he will also
regret the failure of the international community to more decisively reject
efforts by his government and other member states of the Organization for
Islamic Cooperation to establish an international norm prohibiting defamation of
religion.

The OIC-led campaign to recognize defamation of religion as a
violation of international human rights stretches back to 1999. However, it
ostensibly came to an end in 2011 with a much-celebrated “consensus” resolution
at the United Nations aimed instead at “Combating intolerance, negative
stereotyping, stigmatization, discrimination, incitement to violence and
violence against persons, based on religion or belief.”

Impressively, the
new consensus formulation omitted reference to defamation for the first time in
over a decade. This fact prompted the United States and others to herald
passage of the resolution as a “historic” event that put an end to years of
“divisive debate” at the UN. In an effort to build on this consensus, the US in
collaboration with the OIC late last year hosted a series of closed-door
meetings to advance the “Istanbul Process,” a framework aimed at developing
implementation strategies for the resolution.

But as Kashgari’s unfolding
case indicates, this consensus approach is fatally flawed due to the simple fact
that it failed to categorically discredit the “defamation of religion”
chimera.

Even in the afterglow of initial passage of the consensus
resolution, the OIC has continued to assert through statements at the UN and
internal resolutions adopted by its own 57 member states that the defamation of
religion concept retains international legitimacy. At the same time, the OIC has
justified its endorsement of the consensus resolution on combating intolerance
in Clausewitzian terms, as an alternative strategy for achieving the same
objective as its desired ban on defamation of religion, namely prohibiting any
perceived criticism or insult of religion.

In the face of the OIC’s
repeated assertion that defamation of religion continues to enjoy international
legitimacy, the US and other concerned states have remained virtually silent.
The illusion of a consensus ending years of acrimonious debate at the UN has
apparently caused these governments to lose sight of the crux of this debate:
whether international law should countenance privileging the subjective ideas
and beliefs of various religions at the expense of individual human rights. From
this perspective, the consensus approach also has failed in a profoundly
practical regard by doing nothing to curb prosecutions of individuals on the
basis of utterances or actions deemed blasphemous of a predominant
faith. The pending Kashgari prosecution – death for three little tweets –
throws this into unsettling relief.

Malaysia’s deplorable decision to
abide by Saudi Arabia’s request for Kashgari’s return is deadly evidence that an
international norm authorizing criminal prosecution – and even extradition – for
defamation of religion offenses is alive and well. This reality should be deeply
disconcerting to those concerned with maintaining the integrity of the
international human rights framework. More immediately, however, it should serve
as a trigger for reassessing the wisdom of a consensus strategy premised upon
sidestepping or ignoring the specter of defamation of religion.

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Rather
than maintain the delusion that combating intolerance will prove a viable end to
a divisive debate, we need to acknowledge that any genuine consensus on this
issue is destined to fail unless defamation of religion is formally repudiated.
Until such a time, progress within the Istanbul Process should be
suspended. Concerned diplomats and human rights activists alike should
return to familiar if divisive fault lines and redouble efforts to condemn and
abolish the criminal sanction of blasphemy.

In Kashgari’s case, such
efforts could – and should – have included massive international pressure on
Malaysia to refuse the Saudi request to deport. More generally moving forward,
governments that previously voted against defamation of religion resolutions
should inquire of their counterparts that abstained whether they view Kashgari’s
fate as comporting with international human rights law protections. Likewise,
individual OIC members with ties to western states should be surveyed and new
post-Arab Spring governments coming online should be asked to clearly set out
their intentions with respect to international human rights
obligations.

In each of these cases, outcomes can be rewarded in the
context of diplomatic, trade, military, or other incentives. Even if a
UN-sanctioned rejection of defamation of religion proves unachievable and we are
left debating its illegitimacy, nothing can justify supporting a framework
intended to combat intolerance that allows acts of unbridled intolerance to
flourish against Kashgari and others like him.

The author is an associate
professor of law at the University of Tennessee College of Law.

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